“What Libertarianism Is,” Liberty on the Rocks (Houston) (Jan. 10, 2013)

My friend Rob Wicks from out of town was visiting and also attended. It was not recorded, which is probably for the best, since as I recall, this was one of my worst appearances of all time—not my fault; the noise, the ambiance, the format, the setting, and the fairly non-intellectual audience. Not a good match.

[From my Webnote series]

• See also “Knowledge, Calculation, Conflict, and Law,” in Legal Foundations of a Free Society, p. 518 & n.50: “What about the goal of prosperity? Here Barnett could have pointed out, following Mises, that the private-property order and its accompanying price system also permits economic calculation and thus is the only way to achieve this goal. “Knowledge” would have been recognized as merely a technical problem that confronts any individual when choosing means to achieve certain ends and when deciding which ends to pursue. … The need to acquire knowledge faces even Crusoe alone on his island, who has no need for private property rules because there are no other people and thus no possibility of interpersonal conflict.”
  • See also The Problem with Intellectual Property, Part III.A.3; also Intellectual Property and the Structure of Human Action;  Intellectual Freedom and Learning Versus Patent and Copyright; KOL217 | Intellectual Property is the Bastard Child of the Gatekeepers; Another way to explain the problem with IP: Resources v. Knowledge; Ownership v. Possession

I’ve always liked Hans-Hermann Hoppe’s observations regarding how we have to treat aggressors as technical, not ethical, problems. From The Economics and Ethics of Private Property (relevant parts bolded):

while scarcity is a necessary condition for the emergence of the problem of political philosophy, it is not sufficient. For obviously, we could have conflicts regarding the use of scarce resources with, let us say, an elephant or a mosquito, yet we would not consider it possible to resolve these conflicts by means of proposing property norms. In such cases, the avoidance of possible conflicts is merely a technological, not an ethical, problem. For it to become an ethical problem, it is also necessary that the conflicting actors be capable, in principle, of argumentation.

…

Whether or not persons have any rights and, if so, which ones, can only be decided in the course of argumentation (propositional exchange). Justification—proof, conjecture, refutation—is argumentative justification. Anyone who denied this proposition would become involved in a performative contradiction because his denial would itself constitute an argument. Even an ethical relativist must accept this first proposition, which has been referred to as the a priori of argumentation. [continue reading…]

A couple of related posts from the LRC blog a few years back. See also my Mises blog post Libertarian Centralists, and my LewRockwell.com articles A Libertarian Defense of Kelo and Limited Federal Power (June 27, 2005) and Supreme Confusion, Or, A Libertarian Defense of Affirmative Action (July 4, 2003)

***

Constitutional rights?

My Against Intellectual Property has so far been translated into Czech, Georgian, German, Italian, Portugese, and Spanish and, now, into Romanian, as Împotriva Proprietăţii Intelectuale. These are all linked at my Translations page, which includes translations of various of my publications into thirteen languages.

Devices and markets that smartphones have replaced or are replacing, at least in part, or at least supplementing and radically changing. It’s truly amazing:

• calculators
• watches/clocks
• Alarm clocks
• flashlight
• GPS
• maps
• books
• e-readers
• computers
• CD players, MP3 players, Walkman
• DVD players
• video game consoles
• remote controls
• compass
• dictaphone
• land lines
• address books/rolodex
• cameras
• video cameras
• credit card swipers
• wifi hotspots
• broadcast radio
• satellite radio
• broadcast television
• broadband (cable)
• dictionaries
• encyclopedia
• language dictionaries/translations
• tape measure
• levels
• magnifying glass
• pulse sensor
• PDAs
• walkie-talkies/CB/Ham radio
• board games
• display boards for limo drivers at airports
• wallet/money/credit cards
• keys
• paper tickets (to movies, flights)/IDs/Passports (coming)
• scanner
• fax

Update: See The Multifunction Wonder Device: What Has Your Smartphone Replaced?;

A great Cato post and graphic anticipated some of this—there is a lot of overlap between their and my examples:

Dematerialization (update)

Posted by Marian L. Tupy

On June 29, I posted a blog about dematerialization. I used the iPhone as an example of a technological improvement that enables increased output and resource conservation at the same time. I asked the readers of Cato@Liberty to tell me about additional gadgets and physical things (as opposed to services) that they no longer need thanks to their iPhones. Many have written and we have adapted our graphic accordingly. Please share it widely.

Marian L. Tupy • July 12, 2012 @ 12:20 pm

I’ve discussed before my take on whether clickwrap and related agreements ought to be enforceable in The Libertarian View on Fine Print, Shrinkwrap, Clickwrap; see also The Libertarian Approach to Negligence, Tort, and Strict Liability: Wergeld and Partial Wergeld. (My 2004 Oxford University Press book Online Contract Formation addresses purely legal aspects of such questions.)

A recent Inside Counsel piece, IP: Effective terms of use agreements: Website owners should require users to take an affirmative action to provide evidence that they are aware of and consent to a website’s Terms of Use, discusses a recent case which distinguished the enforceability of clickwrap from browsewrap agreements:

To reduce the risk of transacting business online, virtually all website owners place language on their sites that includes, among other things, forum selection and choice of law clauses, limitations on damages and alternative dispute resolution requirements such as mediation or arbitration. This protective language often is presented in the context of “Terms of Use,” an “End User License Agreement,” or “Terms of Service.” Regardless of what the agreement is called, to effectively reduce their risk, website owners need to make certain that a valid agreement exists with the website users.

A court recently addressed the enforceability of a website’s Terms of Use when Zappos.com Inc. tried to require arbitration of a class action consumer dispute. The plaintiffs, who were Zappos.com customers, claimed their personal information was hacked from the Zappos site. Individual plaintiffs sued in federal district courts across the country seeking relief under state and federal statutory and common law for damages resulting from the security breach. Zappos filed a motion to compel arbitration pursuant to its website Terms of Use. The Terms of Use further stated that: “We [Zappos] reserve the right to change this Site and these terms and conditions at any time,” and “ACCESSING, BROWSING OR OTHERWISE USING THE SITE INDICATES YOUR AGREEMENT TO ALL THE TERMS AND CONDITIONS IN THIS AGREEMENT, SO PLEASE READ THIS AGREEMENT CAREFULLY BEFORE PROCEEDING.”

The Nevada District Court, where the cases were consolidated for pretrial proceedings, denied Zappos.com’s motion to compel arbitration. In doing so, the court distinguished between “browsewrap” and “clickwrap” (or “click through”) agreements. A browsewrap agreement is one in which a website owner seeks to bind website users to terms and conditions by posting the terms somewhere on the website, usually accessible through a hyperlink located somewhere on the website. A clickwrap agreement requires users to affirmatively manifest asset to the terms, for example by clicking an “I ACCEPT” button.

The Zappos.com Terms of Use was a browsewrap agreement with no evidence that the plaintiffs had actual knowledge of the agreement. Therefore, the validity of the agreement depended on whether the website provided reasonable notice of the terms of the contract. In holding that the Zappos.com Terms of Use did not provide reasonable notice, the court reasoned that: …

My recent book, Louisiana Civil Law Dictionary (Quid Pro Books, 2011), co-authored with an  Austro-libertarian legal scholar friend, Gregory Rome, was recently reviewed at the iPhoneJD blog:

November 13, 2012

Review: Louisiana Civil Law Dictionary — ebook of civil law words and phrases

I’ve reviewed several legal dictionary apps for the iPhone and iPad — Black’s Law Dictionary, Barron’s Law Dictionary,Nolo’s Plain English Law Dictionary, the Book of Jargon series by Latham & Watkins — but considering that dictionaries were traditionally books, it makes sense that an ebook dictionary could be just as useful on the iPhone and iPad as an app.  Proof of this is found in the Louisiana Civil Law Dictionary, an ebook by Chalmette, Louisiana attorney Gregory Rome and Houston, Texas attorney Stephan Kinsella.  You can purchase this ebook in several formats including Kindle and Nook, and this review is based on the iBooks version of the ebook.  The book is published by ebook publisher Quid Pro Books, the brainchild of Tulane Law Professor Alan Childress.  Prof. Childress sent me a free review copy a few weeks ago.

As you may know, unlike the other 49 states where the law is based on English common law, the law here in Louisiana is based on civil law from jurisdictions such as France.  That means that we have concepts in Louisiana that are very similar to common law concepts but have different names (e.g. “liberative prescription” instead of “statute of limitation”), plus we have many civil law concepts that are unique to Louisiana.  Black’s Law Dictionary does a decent job with some civil law terms, but a dedicated source like the one has the ability to offer more … and I was impressed by this book.

The Louisiana Civil Law Dictionary includes all of the civil law terms that I use in my practice and a bunch more that were new to me.  (I may have learned some of them when I took the bar exam back in 1994, but that space in my brain has long since been replaced by other knowledge.)  The definitions are clear and complete, and the book includes lots of hyperlinks that make it easy to jump around in the book.  Plus it is easy to slide the marker at the bottom of this ebook to jump to different sections.

Being an iBook, it also works fine on the iPhone:

Like all iBooks, you can also search for words in the book, which is helpful in a dictionary.

If you practice law in Louisiana, or if you just want to impress your friends with legal terms that almost sound naughty such “naked owner” and “usufruct,” then consider getting this ebook for your iPad and iPhone.

Click here to get Louisiana Civil Law Dictionary ($9.99):  

Click here to get Louisiana Civil Law Dictionary ($9.99) [Kindle version]

• Mises Post
• Comeaux & Kinsella, Protecting Foreign Investment Under International Law: Legal Aspects of Political Risk (Oceana Publications, 1997), excerpt from chapter 3
• IIPR 2005 Excerpt (from chapter 5 of my book International Investment, Political Risk, and Dispute Resolution: A Practitioner’s Guide (Oceana/Oxford 2005); the more recent edition is International Investment, Political Risk, and Dispute Resolution: A Practitioner’s Guide, Second Edition, co-author (with Noah D. Rubins and Thomas N. Papanastasiou) (Oxford University Press, 2020); pdf)
• Draft Article: “Expropriation, Inalienability, and International Law:  The Illusory Requirements of Nondiscrimination and Public Purpose”
• IIPR 2005 Longer Excerpt (pdf)

***

Mises Blog Post

An old (2005) Mises blog post, followed by an excerpt from a book, and a draft international law article I wrote years ago. The first post refers to my 1997 book Protecting Foreign Investment Under International Law: Legal Aspects of Political Risk (Oceana Publications, 1997), and also to my then-forthcoming book, International Investment, Political Risk, and Dispute Resolution: A Practitioner’s Guide (Oxford 2005). I did not end up putting much discussion of the “illusoriness” of the nondiscrimination and public purpose requirements in the 2005 book, and we toned it down even more for the 2020 second edition. I ended up putting this material into a draft law review article, which is appended below, but which I have never finished.

***

On Takings and Public Use

[Archived Comments  archived comments posted below]

APRIL 4, 2005 by STEPHAN KINSELLA

A law school buddy emailed me some comments about some recent developments in eminent domain law, e.g. this Slate article about Kelo v. New London—a case before the US Supreme Court, that concerns the state’s right to condemn private land and give it to private developers.  ¹

As a mini-primer—the Fifth Amendment to the U.S. Constitution requires that private property can’t be taken unless it is taken “for a public use” and “just compensation” is provided. Now this originally applied only the federal government (see discussion of Barron v. Baltimore here), but has been incorporated into the 14th Amendment so that it now limits the states as well (see this case, and this one; also here; more info re the 14th Amendment here).

So takings have to be for a “public purpose,” and the question is whether this requirement prevents states from condemning private land to give it to private developers. The Kelo case, as I understand it, is about whether “public use” in the 5th Amendment has any real Constitutional meaning. If it does, then shopping malls and luxury apartments become much more difficult to build.

It’s interesting to me how a sound economic (Austrian) and political (anarcho-capitalist) framework can help one cut through the muzzy arguments advanced by both “sides”.The problem is both the proponents, and opponents, of such “non-public use” takings seem to accept the basic idea that there is an objective way to classify something as being a “public use”. In my view, this standard is inherently vague and non-objective. Who knows, maybe transfering land from a little old lady to Donald Trump is a “public purpose,” as much as roads or the military. I doubt it’s possible to articulart a coherent, clear, just standard that the state could respect even if it wanted to. Since it’s not objective, in the end, it’s got to be whatever the state decrees. [continue reading…]

1. Update: see my article “A Libertarian Defense of Kelo and Limited Federal Power,” LewRockwell.com (June 27, 2005). [↩]

Update: The Great Fiction: Property, Economy, Society, and the Politics of Decline (Second Expanded Edition, Mises Institute, 2021) is now available, including my updated Afterword [PDF].

Afterword to First Edition

Professor Hoppe’s book  The Great Fiction: Property, Economy, Society, and the Politics of Decline was published today by Laissez Faire Books. More information available here. My Afterword is repixeled below.

For related material, see also:

• My Afterword to The Great Fiction, Second Expanded Edition
• Hoppe on Property Rights, “Panel: The Significance of Hans-Hermann Hoppe”
• “Foreword,” in Hans-Hermann Hoppe, A Theory of Socialism and Capitalism (Laissez Faire Books ebook edition, 2013)
• “Read Hoppe, Then Nothing Is the Same,” Mises Daily (June 10 2011)
• “Introduction,” with Jörg Guido Hülsmann, in Hülsmann & Kinsella, eds., Property, Freedom, and Society: Essays in Honor of Hans-Hermann Hoppe (Mises Institute, 2009) (published as “Essays in Honor of Hans-Hermann Hoppe,” Mises Daily, Aug. 7, 2009)

Note: As I pointed out in the PDF to the version for the Second Edition:

(The copyright license printed on this edition of Hoppe’s book is factually and legally incorrect: its contents, including my Afterword, are not licensed under a CC-BY-NC-ND license, despite what the copyright notice says. To be clear: I hereby grant a CC0 license in this Afterword and, if that grant fails to be legally enforceable for any reason, I hereby grant a CC-BY license as a fallback, and as a second fallback I hereby estop myself and any legal heirs from asserting copyright in this work.)

This is one drawback of Creative Commons licenses, and illustrates yet another problem with copyright. See Kinsella, “Let’s Make Copyright Opt-OUT” and “Copyright Is Very Sticky!”

❦

Afterword

by Stephan Kinsella ¹

The book you hold in your hands—or that resides in memory bits on your digital device—provides a perfect illustration of the power of Austro-libertarian ideas. Brainpower and genius alone are not enough to provide sound social analysis. One also needs a coherent understanding of economics, in particular of Misesian-Austrian praxeology-based economics. And one needs a coherent and realistic understanding of politics and the state—which is to say, anti-state libertarianism.

We all encounter and learn from brilliant thinkers, but there is often something missing. This is usually because they are insufficiently aware of the true predatorial nature of the state and the role it has played in the history of human society. Or there are, to put it kindly, gaps in their knowledge of economics. How many times have you read a brilliant thinker only to see them err on a crucial issue because of some mainstream economic or statist assumption? It is a frustrating experience.

So genius is not enough. But it helps. After all, the problems and issues at hand are not easy. Great intellect, combined with a realistic, sober view of politics and economics, and with a passion for truth, can achieve great things: a clarifying vision of the nature of the institutions of society. Dr. Hoppe was perfectly placed by the currents of fate to become today’s leading libertarian social theorist, which is to say: today’s leading social theorist.

Professor Hoppe’s genius is evident in the razor-sharp clarity and precision of his words and arguments, and his command of philosophy and economics and related fields such as history, sociology, and the philosophy of science. His formal education originated in his studies at the University of Saarland in Saarbrücken, the Johann Wolfgang Goethe University in Frankfurt am Main, and at the University of Michigan in Ann Arbor, which included a PhD in philosophy under the famous European philosopher Jürgen Habermas and a prestigious “Habilitation” degree on the Foundations of Sociology and Economics. [continue reading…]

1. Stephan Kinsella is the Executive Editor of Libertarian Papers (libertarianpapers.org).[↩]

As I noted in My Days with Baton Rouge Skeptics, in the late 1980s, when I was in law school, I joined a local skeptics’ group in Baton Rouge, which was somehow affiliated with the national CSICOP, the Committe for the Scientific Investigation of Claims of the Paranormal. I eventually left, in part because of their reticence to criticize religion (as if religion should be exempt from the same type of skeptical criticism we aimed at people who said they had ESP) and, more importantly, because of their refusal to recognize socialism and statism as types of irrationality.

During those days, I was a BSEE then MSEE student at LSU. One of my (and my wife’s) professors was a very smart, patient, soft-spoken man named Ali S. Mirbod. I think he was from Egypt. He died a few years later of a brain tumor. I remember after he would present some difficult issue he would stop and say, “is it clear?” and it sounded like “EEZ EET CLEE-ARR”? Anyway there was at the time this Mississippi guy named Joseph Newman who claimed he had invented a way to harness subatomic “gyroscopic particles” to get free energy. He had all kinds of contraptions wiht battery stacks connected to his machine which powered a light bulb, and he claimed it was some kind of net energy producer.

This is obvious nonsense. So a patent application for it was rejected by the US Patent Office, on the grounds that the invention lacked utility—that it did not work. Since perpetual motion machines are impossible. This led to Louisiana Rep. Bob Livingston getting involved on Newman’s behalf, tests of the machine’s efficacy by my professor Mirbod and by the NIS, and to me corresponding with Livingston about it and writing my own mini-report for the Baton Rouge Skeptics group. The documents are here.

My paper How We Come To Own Ourselves, Mises Daily (Sep. 7, 2006; Mises.org blog discussion) has been nicely narrated, with helpful but unobtrusive slides, by Graham Wright.